Yeshayahu Leibowitz
A Call for the Separation of Religion and State
(1959)
Separation of religion and state is the slogan heard from time to time in public debate
in Israel. It is not, however, the actual policy of any party or political group. The
slogan is raised as the expression of a theoretical position in "secular" circles, but its
advocates do not regard it seriously as a political demand to be realized in the present.
They do not attempt to clarify its meaning nor do they propose a plan for embodying it
in law and government. Their struggle is limited to episodic clashed with religious or
pseudo-religious aspects of administrative behavior or legislative action. At the same
time, official religious Jewry, its spiritual leaders and political representatives, who
rejected the idea of separation and supported the existing relation between state and
religion, never accounted for their own position. It is doubtful whether they have ever
critically examined it. A struggle over the relation of religion and the state has never
really been conducted between the religious and secular in Israel. Out of sheer
opportunism, both sides accept the reality of a secular state with a religious façade.
In these pages the demand for separation of religion and state will be presented
from a religious viewpoint, from which the present relations between the state and the
Torah appear as Hillul Hashem, contempt of the Torah, and a threat to religion.1 Two
prefatory remarks are necessary in order to clarify this position.
First, the religion with which we are concerned is traditional Judaism, embodies in
Torah and Mitzvoth, which claims sovereignty over the life of the individual and the
life of the community - not a religion which can be satisfied with formal arrangements
grafted on to a secular reality.
Second, the state of which we speak is contemporary Israel, a state defined by its
manner of coming into being in 1948 and its mode of existence from then onward - not
the state as an ideal. In other words, the relation of religion and state is not discussed
here as an article of faith. We shall not inquire as to what, in principle, should be the
relation between "religion" (in general) and "state" (in general), nor seek to demarcate
"the holy," "the secular," the historical, or the metaphysical essence of the Jewish
people as the people of the Torah. We are concerned with determining what sort of
political-social organization would be in the religious interest in the existing situation.
The state of Israel that came into being in 1948 by the common action, effort, and
sacrifices of both religious and secular Jews was an essentially secular state. It has
remained essentially secular and will necessarily continue to be such, unless a mighty
spiritual and social upheaval occurs among the people lining here. The secularity of
this state is not incidental but essential. The motivation and incentive for its foundation
were not derived from the Torah. Its founders did not act under the guidance of the
Torah and its precepts. It is not conducted by the light of the Torah. That "the state of
Israel is a state ruled by law and not a state governed by Halakhah" is recognized by all
- including the religious - as the principle governing the activity and administration of
this state, in which official religious Jewry has participated since its establishment.2
Whether we are religious or secular, we brought this state about by dint of our
common efforts as Jewish patriots, and Jewish patriotism - like all patriotism - is a
secular human motive not imbued with sanctity. Holiness consists only in observance
of the Torah and its Mitzvoth: "and you shall be holy to your God." We have no right
to link the emergence of the state of Israel to the religious concept of messianic
redemption, with its idea of religious regeneration of the world or at least of the Jewish
people. There is no justification for enveloping this political-historical event in an aura
of holiness. Certainly, there is little ground for regarding the mere existence of this
state as a religiously significant phenomenon.
Even from the standpoint of religious awareness and faith, this Jewish state is in
the same category as the kingdoms of Yarov'am, Ahab, Menasseh, and Herod were in
their time. A person does not and may not sever his connection with a criminal parent,
nor may a parent repudiate a son who has gone astray. Likewise, the Jew, including the
religious Jew, may not dissociate himself from this state. However, though we fully
recognize its legitimacy, it is necessary to confront the secular state and society with
the image of a religious society and state, that is of a state in which the Torah is the
sovereign authority. What is truly illegitimate is the surreptitious introduction, by
administrative action of religious items into the secular reality so as to disguise its
essential secularity.
The demand for the separation of religion from the existing secular state derives
from the vital religious need to prevent religion from becoming a political tool, a
function of the governmental bureaucracy, which "keeps" religion and religious
institutions not for religious reasons but as a concession to pressure groups in the
interest of ephemeral power-considerations. Religion as an adjunct of a secular
authority is the antithesis of true religion. It hinders religious education of the
community at large and constricts the religious influence on its way of life. From a
religious standpoint there is no greater abomination than an atheistic-clerical regime.
At present we have a state - secular in essence and most of its manifestations - which
recognizes religious institutions as state agencies, supports them with its funds, and, by
administrative means, imposes, not religion, but certain religious provisions chosen
arbitrarily by political negotiation. All the while, it emphasizes its rejection of
guidance by Torah ("a state ruled by law, not by Halakhah"). We have a rabbinate
invested by the state, which receives its appointment, authority, and pay from the
secular government and confines itself, therefore, to the functions that this government
allots to it. It is a religion whose position in the state parallels that of the police, the
health authorities, the postal services, or customs. There is no greater degradation of
religion than maintenance of its institutions by a secular state. Nothing restricts its
influence or diminishes its persuasiveness more than investing secular functions, with
a religious aura; adopting sundry religious obligations and proscriptions as glaring
exceptions into a system of secular laws; imposing an arbitrary selection of religious
regulations on the community while refusing to obligate itself and the community to
recognize the authority of religion; in short, making it serve not God but political
utility.
This is a distortion of reality, a subversion of truth, both religious and social, and a
source of intellectual and spiritual corruption. The secular state and society should be
stripped of their false religious veneer. Only then will it become possible to discern
whether or not they have any message as a Jewish state and society. Likewise, the
Jewish religion should be forced into taking its stand without the shield of an
administrative status. Only then will its strength be revealed, and only thus will it
become capable of exerting an educational force and influencing the broader public.
Against this argument, religious circles claim that such separation would make the
social and perhaps even physical existence of religious Jews within the secular state
and society unbearable and compel Jews to forsake their religious way of life. These
arguments stem, to some extent, from naïveté, from misunderstanding the implications
of separation of religion and state for the conduct and administration of state and
society. To some extent they only pretend naïveté and veil vested interests. In effect,
such separation would not in the least narrow the possibilities open to religious Jews of
living according to their wont. It would even foster the expressions of religious life in
the community at large. Let us attempt to gain a realistic view of the consequences of
separating religion and state.
The religious institutions will be conducted by the religious community with religious
considerations in view; in the interest of religion and not in conformity with the
dictates of a secular authority. Officials exercising religious functions will no longer be
appointed by governmental authorities not subject to the Torah. Religious projects and
institutions will not be administered by government agencies. Religious Jewry will
have a rabbinate that is not an "official state rabbinate," an institution which had
earned only contempt in Jewish history.3 This rabbinate wills constitute an authentic
religious leadership rather than an arm of the secular state. It will be able to speak with
the voice of the Torah and Halakhah on every matter and every public issue in which
there is something to be said, not only in the restricted domain allotted it by the secular
authority. This would put an end to the intolerable situation in which the rabbinate - as
a governmental agency - must refrain from public statements on what is the most
urgent religious issue of the day, that of secular and religious education, and be silent
when Jewish children are seduced or forces into abandoning their religion. 4 The
change would eliminate the disputes and clashes among religious functionaries on an
atheistic government - between a Minister of Religions and a Chief Rabbi - whose
squabbles concern not Torah issues or questions of halakhic import but distribution of
the petty authority granted them by a secular regime.
Who will maintain the agencies required by the religious community? In the first
place, the religious community will do so through its own funding, as was done at all
times wherever an organized religious community existed. To be sure, this requires
sacrifices. But the religious community has always and everywhere borne this burden
as something to be taken for granted, an inseparable aspect of its religious existence.
Even the poorest community in a remote village in Yemen or Libya maintained its
rabbis, ritual slaughter, synagogues, and cemeteries, without the help of the United
Jewish Appeal or an appropriation from the imam or the sultan - and never complained
that this was beyond its capacity. Only in the state of Israel, which transformed
religion into a function of the secular government, has the religious community been
corrupted and become accustomed to financial dependence upon a secular authority. If
the situation is reversed, there is not doubt that after a short period of confusion which
will follow the separation of religion from the state, the self-respect of the religious
community will be restored, and it will once again maintain and support its own
agencies as religious institutions. In this respect we can learn from parallel
developments in the Gentile world. In France during the nineteenth century, as a result
of the Napoleonic Concordat that made the religious institutions functionaries of the
state, the Catholic Church and clergy were subject to scorn and contempt. In the
twentieth century, after the separation of church and state, when the church and its
personnel had to be supported solely by contributions of the believers, its prestige grew
and its influence increased.
It is necessary to ascertain whether, from a religious standpoint, the Jewish
religious institutions should or may accept financial support from the secular state.
This writer believes that religious Jewry should - in the interest of fostering respect for
the Torah - refuse to accept such support. Should the religious community, upon due
deliberation, decide otherwise, it could be entitled to such support even after the
separation of religion and state by virtue of its status and taxpayers who share the
burden of the state and its services.
The religious councils will be chosen by all religious Jews who are interested in their
activities. They will cease to be affiliated with the Ministry of Religions. The abolition
of the Ministry of Religions will free Judaism and religious Jews from a religious
anomaly - now passed over in silence by the religious establishment - of supporting
institutions of other religions (some of which are actually idolatrous, according to the
strict law of the Torah) with the money of Jews.5 Without a Ministry of Religions, and
without state funding of Jewish religious institutions, our democratic state will be free
of the obligation to support the institutions of other religions. Members of all religions
will maintain their own clergy.
The Sabbath. In the present integration of religion and state, the Sabbath is desecrated
by the state. The law recognizes the right of every person to desecrate the Sabbath
publicly, for example by driving. The police and courts were called in more than once
to protect this right - even when official religious Jewry, with all its parties,
participated in the government and shared responsibility for the actions of the police.
The prohibition of public transportation on the Sabbath is only a sop to religious
Jewry, a face-saving device. The hypocrisy of this arrangement, which degrades
religion and reveals the "religious" stand in a ridiculous light, attains its peak in Haifa.
Religious Jewry, which is represented in the city council, shares responsibility for
operating the bus transportation on Sabbath - in exchange for participating in the
coalition governing the city council. Yet it is ready to fight against operating the
subway on the Sabbath - presumably because of a political agreement on maintenance
of a status quo in religious matters.
The existing law does not recognize the sanctity of the Sabbath. It removes the
definition of "rest" from halakhic jurisdiction and vests it in the secular authority or in
inter-party agreement. There is no basis for the fear that the state, after religion is
separated from it, will make any change in the Sabbath law, which establishes the
workers' right of rest and the obligation to close stores and work places on the Sabbath.
The extent to which this Sabbath rest will correspond to the religious prescriptions
concerning the Sabbath will depend on public opinion and the influence of religious
Jewry in the public matters. This influence will, in all likelihood, be increased upon
separation of religion and state with the growth in prestige and educational
effectiveness of religion.
Sabbath and Kashruth in the army. The Sabbath and Kashruth (dietary laws) are
observed in the army, but not in consequence of the formal interlocking of religion
with the laws of the state; rather, because so very many Jews could not serve in the
army were they not assured of the Sabbath rest and kosher food. The state could not
draft the entire Jewish population for defense of the state in one unified national army
if it did not provide them. It cannot maintain a separate "religious army" alongside the
general army.6 These provisions of the army will not change even after the separation
of religion and state. It should be noted that even now the religious prohibitions of
desecrating the Sabbath and eating nonkosher food are not enforced in the army,
because every soldier is permitted use of one mess-tin for meat and milk. The army
only enables every soldier who so desires to rest on the Sabbath and to eat kosher food.
Law of marriage and divorce. It is erroneous to argue that the institution of civil
marriage by the state will divide the Jewish people into two nations which will not be
able to intermarry. Civil marriage will not annul the institution of religious marriage.
Whoever so argues overlooks - deliberately or out of ignorance - the hundreds of
thousands of religious Jews in Western lands, who conduct their family life according
to the Torah in states which recognize civil marriage and divorce (as in England) or
even require them (as in Imperial or Weimar Germany). A Torah-observing Jew will
continue to marry according to Jewish law and if, unfortunately, the couple divorce,
they will do this according to the law of Moses and Israel. Those who rebel against
religion will be content with registering their "marriage" or "divorce" in a government
office in a form that will be determined by law. Here the two terms are put in quotation
marks, because from a halakhic standpoint, no marriage took place. Consequently,
upon separation there is no need of divorce. In the absence of halakhically recognized
marriage there is no question of Mamzeruth, since a child born out of wedlock is not
disqualified from marrying.7 The rabbinical courts do not seem to have dealt seriously
and pertinently with the halakhic significance of "civil marriage" for Jewish couples
that explicitly refuse marriage according to the Torah. One may question whether such
a marriage has any halakhic force.8 The ruling, which would reduce the incidence of
Mamzeruth to a minimum, would be a great improvement over the present situation
under the Law of Marriage and Divorce which, given the sexual practices of
considerable portions of the community, tends to aggravate the problem of Mamzeruth
in Israel. Prohibition of adultery concerns only those involved and can hardly be
grounded today in moral or social considerations; moreover, it is a purely religious
proscription. Consequently, many sectors of the population where the authority of
religious law has been undermined - and they include many very respectable people do not consider adultery immoral. Hence those who force religious marriage on people
who do not recognize its sanctity are violating the proscription of placing a stumbling
block before the blind. Men and women are led into a far more serious halakhic
transgression than that of living together without religious marriage.
In the face of these realities, the fear of dividing the nation as a result of rescinding
the Law of Marriage and Divorce is ridiculous and perhaps insincere. Can a Jewish
man and woman marry, if one of them sees himself bound by the laws of family purity,
and the other does not accept them? Theses precepts are much more stringent than the
prohibition of cohabitation with an unmarried woman. Furthermore, religious Jewry,
more than any other sector of the nation, is committed to the view that the state of
Israel is not merely the state of those now living in it but is the Jewish state, that is, the
state of all Jews, who are all potential citizens. Did religious Jewry, in its fear of
Mamzeruth on the one hand and concern for the unity of the nation on the other, think
of the problems that will arise the moment - perhaps not so far away - when masses of
Jews from the U.S.S.R. or the United States will stream to Israel? These Jews have
conducted their lives for two generations, or even more, in accordance with the legal
provisions and social patterns of their countries or residence. It will not prove possible
to trace their precise family status. How does religious Jewry think it could assure the
unity of the nation in those conditions?
The issue of the separation of religion and state also includes the problem of "who is a
Jew"? - a problem which could arise only as a result of confused categories. Transient
and changing interests of coalition governments have led them, on one occasion, to an
attempt to abrogate the historical-traditional criteria of belonging to the Jewish people,
and at other times to abandon this attempt. If the state of Israel were formally and
legally recognized as secular, the problem would not arise at all, for a secular state
does not determine the "Jewishness" or "non-Jewishness" of its citizens. It recognizes
only "citizens" and "non-citizens," and the concept "Jew" would retain its historictraditional connotation. The (momentary) retreat of the government from its position
on this question - a retreat which the religious parties regard as their victory - shows
that the status of religion in the state is determined more by the communal
consciousness and the pressure of public opinion in Israel and abroad than by the
organs of the state. Releasing religion from its integration in the political-secular
system is the most effective way to strengthen religious consciousness and its
influence on the public.
Religious education. There is no direct link between the status and extent of religious
education on the one hand, and the legal position of religion in the state on the other.
Such a connection exists necessarily only in the framework of a totalitarian regime. It
does not obtain in a liberal polity, in which social reality is not identical with the
official political order. Among well-ordered and enlightened states, all which have
compulsory education laws, educational systems differ considerably in uniformity and
in degree of involvement of the government in the pedagogic process; compare, for
example, England, France, Germany (of Weimar and Bonn), Holland, and the United
states, in all of which religious education flourishes. In the United States, where the
Constitution and the Supreme Court forbid support of religious education by the state,
there is a network of thousands of Catholic elementary and high schools, numbering
four million pupils, which are not inferior in level and achievement to the secular
public schools of the states and cities. In other countries the policy of every school is
determined by the parents' committee, and within the broad framework established by
law, the education authority accedes to the parents' preferences. The common feature
of all these systems is that the secular state is not in control of religious education and
religious education is not one of its functions; it is set up and maintained by religious
community that desires it - whether this be a community with a ramified church
organization or one represented by parents of a specific school. The extent of state
support of these schools is determined by law. Their main support depends largely on
the will of the religious community and the strength of its religious commitment.
In all these matters the state of Israel could emulate the best-governed nations, and,
from a Jewish religious standpoint, it is most desirable that it do so. The fear that
without governmental backing religious education could not support itself or would be
curtailed - the fear of educational independence - reflects the moral failing of the
religious community fostered by the dependence of religion on the state. In the past,
religious Jews customarily devoted great efforts to education their children and were
prepared to pay the price. A condition for religious revitalization, without which there
is no future for religious education in any of its forms, is the revival of initiative and
readiness of religious Jews to undertake this burden.
Removal or religious education from control of the secular state and its transfer to
the religious community - with or without financial support of the state - will open new
prospects for expansion and enable it to reach broader strata of the population. The
existing law, which purports to obligate the state to support religious schooling, is in
reality a legal arrangement for confining such education within the limits the secular
authority is prepared to tolerate, and to localities in which the secular authority is
willing to forego its control in favor of the religious population. In return, the religious
public refrains from serious struggle for expansion of religious education to include
more children. Cases have even been recorded of explicit agreements over percentage
quotas of pupils to be allotted to religious and to secular schools. Only by conducting
independent religious schooling can Jewish religion appear on the public scene in its
full potential, communicate its message in its entirety, and exert the influence of which
it is capable.
The separation of religion and state would involve neither withdrawal of religion to
a secluded niche nor removal of religious Jewry from the political scene. On the
contrary, it would signify the beginning of the great confrontation between Judaism
and secularism within Jewry and the Jewish state and initiate a genuine struggle
between them over the hearts and minds of the citizens. Religion as an independent
force will be the principal opposition to the regime of the secular state, an opposition
which can present a clear and unambiguous alternative in all areas of life in the state
and society.
1
Hillul Hashem, an expression derived from a locution used by the prophet Ezekiel and meaning
desecration of God's name, is used as a derisive designation for the actions of pious Jews which disgrace
their religion – Ed.
2
"Israel is a state ruled by law, not by Halakhah" was a favorite dictum of Ben Gurion. – Ed.
3
The allusion is to the rabbis appointed by the Czarist government to further its policy with respect to
the Jews. – Ed.
4
The reference is chiefly to the period of mass immigration in the early fifties, when many immigrant
children from religious homes were arbitrarily assigned to secular educational institutions rather than to
schools of the religious stream within the state educational system – Ed.
5
The Ministry of Religions maintains most of the religious facilities and pays the salaries of the duly
constituted religious functionaries of the Moslem and Druse communities. It participates in the
maintenance and construction of buildings serving the religious purposes of Moslems and Christians –
Ed.
6
Such a situation obtained in the Hagganah, the Jewish defense force which operated under the
conditions of mandatory rule. Religious members were organized in separate units in which they were
able to avoid unnecessary desecration of the Sabbath – Ed.
7
The Halakhah does not recognize a status of bastardy. A child of an unmarried mother is legitimate in
every respect. However, a child born of an incestuous or adulterous relation, called "mamzer", can only
marry a person of like status – Ed.
8
The question whether, from a halakhic standpoint, a couple wed by civil marriage requires a
halakhically valid divorce in order that the wife may remarry has been the subject of controversy among
rabbis. Because of the doubt concerning the status of such a couple, the tendency has been to require
halakhic divorce in such cases. The point made in the text is that the explicit refusal of the couple to be
halakhically wedded may make it unnecessary to require a halakhic divorce. It eliminates the chief
ground for its need – Ed.